Rule 36 Clerical Mistakes

Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders. Compare. — Rule 36, Fed. Rules Cr. Proc. Erroneous description of the crime for which defendant was convicted. — Where the judge misspoke during the sentencing proceeding, calling defendant’s conviction by the jury a conviction for attempted aggravated robbery rather than for aggravated robbery, the judge’s use of the word “attempted” was not the deliberate result of judicial reasoning and determination but was, instead, a clerical error which could be corrected by virtue of W.R.Cr.P. 36 to accurately reflect the offense of which defendant was convicted. Kearns v. State, 2002 WY 97, 48 P.3d 1090, 2002 Wyo. LEXIS 103 (Wyo. 2002). Nunc pro tunc judgment proper. — District court did not err when it denied defendant’s motion to correct an illegal sentence and instead issued the nunc pro tunc judgment to correct the inaccuracy in his written sentence without notice or a hearing because there being no change in his sentence, defendant had no constitutional right to a sentencing hearing. Brown v. State, 2021 WY 79, 489 P.3d 1162, 2021 Wyo. LEXIS 87 (Wyo. 2021). Nunc pro tunc judgment correcting the written sentence to conform it to the oral pronouncement was proper because the district court’s oral pronouncement of defendant’s sentence, a “term of natural life, according to law,” prevailed over his written sentence from the outset, and the nunc pro tunc judgment simply conformed defendant’s written sentence to the oral pronouncement. Brown v. State, 2021 WY 79, 489 P.3d 1162, 2021 Wyo. LEXIS 87 (Wyo. 2021). Applicability. — Action to which defendant objected, namely the imposition of consecutive terms rather than concurrent terms of incarceration, was a result of judicial, not clerical, action, and the asserted “mistake” was not a mistake at all, but the product of a written and signed plea agreement, which defendant approved; therefore, W.R.Cr.P. 36 provided no relief. Beck v. State, 2005 WY 56, 110 P.3d 898, 2005 Wyo. LEXIS 64 (Wyo. 2005). Written judgment and sentence does not control over an oral sentence at variance with it. Where the transcript of the oral sentence and judgment and the mittimus are unambiguous and plain in directing a consecutive, not concurrent, sentence, and the written judgment and sentence contains an oversight and omission in this respect, it may be properly corrected by the trial court in a nunc pro tunc judgment and sentence. Lane v. State, 663 P.2d 175, 1983 Wyo. LEXIS 318 (Wyo. 1983).